Thursday, July 17, 2014

muflah ha'samuch l'ish, or when is a katan not a katan?

There is a chiddush in the parsha of nedarim that the vows of a child a year
under bar mitzvah, a muflah hasamuch l’ish, have validity.There are two possible ways of understanding
this din: 1) does the Torah mean that even though the child is still a minor,
when it comes to hil nedarim his/her vows are taken seriously, or, 2) is the
Torah redefining the age of majority viz a viz hilchos nedarim?

The gemara (Nidah 46) quotes Rav Huna that if a muflah
hasamuch l’ish makes a neder and then violates that neder, he/she would get
malkos.If the chiddush haTorah of
muflah hasmauch l’ish was just that even a neder of a katan has validity, then Rav
Huna’s din wouldn't make sense – a katan is exempt from punishment.It must be that the Torah treats a muflah as
a gadol.The same can be seen from the
Rambam’s formulation (Nedarim 11:4):

The words “higi'u l'shanei hagedolim" imply
that a muflah is considered (viz a viz nedarim) a full fledged gadol.

We discussed a similar issue once before.R’ Chaim (al haRambam) asks how the gemara
can have a hava amina that the age at which child can become a ben sorer u’moreh
is under 13 – a minor cannot serve as a defendant or plaintiff in beis din!R’ Chaim therefore concludes that the gavra
of the ben sorer u’moreh is technically never found guilty of any crime.Beis din simply finds as a matter of fact
that he has the status of a ben sorer, and because of that status he is given a
punishment for the inevitable future crimes he will commit (ne’herag al shem
sofo).R’ Shach in Avi Ezri sees this as
a distinction without a difference.How
can a person be punished without being guilty of some crime?Rather, explains Rav Shach, even though
normally a minor cannot come before beis din or receive punishment, the
chiddush of the parsha of ben sorer u’moreh is that viz a viz this particular parsha
we treat the individual as a gadol from an earlier age.

My son showed me that the Shitah Mekubetzes in Archin 3a
asks why a pasuk is needed to exclude a katan from punishment for the issur of
being metamei mikdash – a katan is never liable for punishment?The Shitah gives two answers: 1) since a
katan is included in the parsha of tumah, i.e. he can become tamei, I might
have thought the issurim and punishments extend to him as well, kah mashma lan;
2) the exclusion is needed for someone who becomes tamei as a katan and then
becomes a gadol and enters the Mikdash.Could the two answers of the Shitah hinge on this
chakirah?The first answer seems to
accept at least in theory that a katan could be liable for punishment, which would imply that viz a viz the parsha of tumah he is treated as a gadol. The second answer perhaps holds that a katan remains a katan, irrespective of whether certain dinim apply to him at an earlier age.

I thought maybe the din of tumas mikdash is different. It’s not an issur gavra of entering the mikdash while tamei, but rather
a din in the cheftza shel mikdash not being a place where tumah is
brought.It doesn’t matter whether the
vehicle for the tumah coming in is through a gadol or a katan.By way of analogy, the S.A. paskens that a
katan can light ner Chanukah for the family even though normally a katan cannot
be motzi a gadol in mitzvos.There too,
the idea may be that the mitvah of ner Chanukah is the cheftza shel menorah
being lit (as R’ Chaim al haRambam explains by neiros mikdash), irrespective of
who is doing the lighting.Essentially I
am trying to have my cake and eat it too – like R’ Chaim explains by ben sorer
u’moreh, I am essentially opening the door to giving out a punishment absent any
chovas hagavra, simply by virtue of a certain situation being created.Now that I’ve written this
out, I’m less convinced that this makes sense, but I’ll throw it out there
anyway for your thoughts.

3 comments:

I don't think neiros chanuka is a good analogy, because there the katan is not being motzi anyone - that's a chovas habayis, so as long as the candles are lit by someone who is a bar chiyuva (even miderabbanan), it has a shem neir chanuka in the bayis. (Igros HaGrid. I believe the katan at least has to be a bar chiyuva miderabbanan of chinuch in the Rav's hesber. If a non-Jew lit the candles, nobody would be yotze.)

But by tumas mikdash, no matter whether you say it's a din in mikdash or an issur gavra, the katan would still be getting an onesh and he's not bar onshin yet, so I don't think that answers it.

As far as Ben Sorer U'moreh, presumably the answer to Rav Shach's question is that in Eretz Hatzvi (maybe 35?) he has from the Rav who learned that there are a number of cases that get an malkus or misa from beis din where it's not a result of the maase aveira, but the chalos shem begavra - Eidim Zommin (see also Shiurei HaRav Sanhedrin 8b), Ben Sorer U'moreh, and the last two I think are zaken mamre and meisis.

That's the same as saying it's just a din in the cheftza being lit, not a chovas hagavra to do the lighting, like R' Chaim.

>>>the katan would still be getting an onesh and he's not bar onshin yet

What I am saying is that being a bar onshin only comes into place if the onesh is a function of the gavra being a ba'al aveira. That's not why the katan is being punished by tumas mikdash. A better analogy would be to a shor getting killed for goring. A shor cannot be a ba'al din any more than a katan can and certainly has no chiyuvim in mitzvos.

>>>it's not a result of the maase aveira, but the chalos shem begavra

That's basically the same thing R' Chaim al haRambam is saying by ben sorer u'moreh, but R' Shach is having none of it because he views the chalos on the gavra as coming from the child being a criminal -- he had to have done something wrong and beein guilty of a crime. You don't get slapped with a chalos shem from out of nowhere. (I would say that R' Shach may be a Brisker, but here he is thinking like R' Shimon Shkop and being a Telzer. R' Shimon always looks at the sibah -- the why. What caused the "shem" ben sorer u'moreh? Was it not doing something wrong and being found chayav?)

I am admittedly more familiar with this issue as relates to eidim zomemin, but there are rayas there for getting slapped with the chalos sheim out of nowhere. The clearest such raya (brought by Rav Schachter and possibly the Rav) is Nimukei Yosef in Makos brings from the Ritz Geius that in a kat of three eidim, if two are huzam, you also kill the third, even if he wasn't huzam. But maybe he was telling the truth, and he wasn't an eid zomeim? You see that through nimtza echad karov upasul he gets the sheim eid zomeim also, and that's enough to be mechayev him, even if he never said any false eidus.

So you see you can have the chalos sheim, and even a chiyuv misa, without any maase aveira, just the chalos shem.

And you know very well that - the why and the sibah - R Chaim would never tolerate that kind of language ;)